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TMI Blog2023 (5) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... art, what needs to be noticed is that the view taken by the Joint Commissioner that since the activities in respect of collection /recovery of post-paid plan outstanding dues had been undertaken after completion of the provision of taxable output services they would not be covered in the main part or the inclusive part of the definition of input service is not correct. Rule 2(l) of the 2004 Rules provides that the input service must be used for providing output service. The provider of output service, therefore, shall be eligible to avail CENVAT Credit on all those services which are used for providing output services without which the provision of the said output service would become impossible or commercially inexpedient. What, therefore, follows is that services having relation with the business of providing of output service would be covered by the definition of input service. Thus, it has to be held that the respondent was entitled to avail CENVAT Credit of service tax discharged on the commission paid by the respondent to collection agents for collection of dues of post-paid plans from the subscribers. Appeal of Revenue dismissed. - Service Tax Appeal No. 50620 of 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covery / collection of dues in respect of their post paid plan and they have paid commission to such agents who have charged service tax on the commission charged by them on such post paid plan collection / recovery services. Further I find that the services of collection / recovery of dues of the post paid plan have not used by the noticee for providing the output services rather the same has been used after completion of the provision of the output services. Thus, the activities in respect of collection / recovery of post paid plan outstanding dues have been undertaken after completion of provision of the taxable output service (i.e. telecommunication service). Therefore I find that services of Collection Agent used by the noticee are neither covered under mean part nor in the inclusive part of the definition. Not in the mean part because of its non-utilization for the provision of output service (i.e. telecommunication service) and also not in the inclusive part because of their character does not matches with the services specified therein. Therefore, the notice have wrongly availed Cenvat credit of Service Tax paid on commission paid to such collection / recovery agents and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Regarding the judgment of Hon'ble High Court of Gujrat in the case of Cadila Healthcare Ltd. reported in 2013 (30) STR 3 (Guj.), I find that in that case the Hon'ble Court has considered the issue wherein period of demand was prior to year 2008. During the period from year 2008 till date, this issue has been considered by various appellate authorities and the Board has also issued clarification vide circular dated 29.4.2011. Further, as contended by the appellant- service providers also, an Explanation in the definition of input service has been inserted vide Notification No.02/2016-CE (NT) dated 3.2.2016 which, as per settled principle of Law, has retrospective effect as the same is in the form of explanation only. Further this issue has also been clarified at point B.30 of the minutes of Tariff Conference of Central Excise held on 28-29 October, 2015 circulated vide F.No.96/85/2015-CX.1 dated 7.12.2015, wherein subject service has been considered as input service. Since at this point of time, statutory provisions/grounds are available to deal with the issue in the form of clarification, Tariff Conference and Notification as discussed above, conclusion can be drawn beyon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expedient. In support of this contention, learned counsel placed reliance upon a decision of the Mumbai Tribunal in WNS Global Services Pvt. Ltd. Vs. Commissioner of Central Excise, Nashik 2013(32) S.T.R. 657 (Tri.-Mumbai) and also on the decision of the Tribunal in M/s Vodafone Essar Cellular Ltd. Vs. Commissioner of G.S.T. Central Excise, Chennai South Commissionerate 2018 (9) TMI 985-CESTAT Chennai 9. The submissions advanced by the learned authorized representative appearing for the department and the learned counsel appearing for the respondent have been considered. 10. As noticed above, the show cause notice that was issued to the respondent alleged that the service of collection of dues of the postpaid plan had not been used by the respondent for providing output service and in fact had been used after completion of the provision of output service and, therefore, would not qualify as input services for provision of telecommunication service. The Joint Commissioner, in the order dated 27.01.2017, took the same view as was proposed in the show cause notice. 11. The Commissioner (Appeals), however, held that the CENVAT Credit of the service tax paid would be avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat such a legislation, giving it a purposive construction, would warrant it to be given retrospective effect, In Commissioner of Income Tax Vs. Archean Granite Private Limited (2020) 117 Taxmann.com 977 (Madras) amendment made to Section 40(a) (ia) of the Finance Act, 2010 inserting proviso therein was held to be retrospective with effect from the assessment year 2005-2006 and the Court followed the decision in the case of Commissioner of Income Tax Vs. Calcutta Export Company MANU/SC/0528/2018: (2018) 93 Taxmann.com 51. Therefore, we find that the approach to the issue in the manner done by the learned tribunal cannot be faulted. 14. This apart, what needs to be noticed is that the view taken by the Joint Commissioner that since the activities in respect of collection /recovery of post-paid plan outstanding dues had been undertaken after completion of the provision of taxable output services they would not be covered in the main part or the inclusive part of the definition of input service is not correct. Rule 2(l) of the 2004 Rules provides that the input service must be used for providing output service. The provider of output service, therefore, shall be eligible to avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case, the same cannot be taken into consideration for deciding the issue on merit involved in the present case. However, the Revenue is free to take appropriate action in accordance with law, if it is found that against the credit of input service i.e. seizing charges if any exempted service is provided. As per our above discussion, the appellant is entitled for the Cenvat credit on the service of repossession of vehicle provided by the various recovery agent to the appellant against the output service of the appellant i.e. lending of money (Banking and Other Financial Service), accordingly the impugned order is set aside. The appeal is allowed. 15. In Vodafone Essar Cellular Ltd., the Tribunal also reiterated the aforesaid views in the following manner:- The third issue that arises for consideration is the credit availed on various input services. The appellant has given the details of the various input services in the table as shown above. The services erection, construction and installation of towers and shelters was availed by the appellant for providing output service of telecommunication. These services have direct nexus with the output service and therefore, is e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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